Capping legal costs in clinical negligence claims
The Government has just announced plans to consult on capping legal costs in claims for negligent medical treatment. Costs and damages have risen in recent years so that the annual bill now exceeds £1 billion. It is recognised that spiralling claims and costs will potentially divert money away from patient care but any change to the present position on costs recovery needs to properly recognise the complexity of these types of cases, regardless of value.
The Government’s proposal of looking at cases valued in the region of £100,000 or less, potentially captures a range of cases, important to the individual but which can be costly to investigate with relatively low recovery of damages. This includes claims arising from stillbirth, the death of an elderly relative and many orthopaedic injury cases.
Why are costs so high?
There are a number of reasons for this, which includes the complexity of the enquiries required and medical reports needed. For the Claimant, in order to determine whether there is a claim, the work required may involve obtaining two or three reports from different medical disciplines. It is not a level playing field for Claimants and Defendants as Defendants have easier access to a wide range of experts and at trial have doctors giving evidence supported by expert doctor witnesses.
Defendants complain about paying high legal costs in low value claims but they could and should do more to minimise costs at an early stage. Cases with poor prospects of succeeding are generally not pursued by Claimant lawyers because there is a very careful assessment of risk. Nevertheless, Claimants see too many cases which are defended aggressively and not enough cases which are settled with early admissions of liability. Not only is that costly financially to the NHSLA, but it comes at a heavy price for a Claimant who has to deal with the emotional rollercoaster of a claim which drags on for too long before it is settled.
There is already an agreed system or protocol for dealing with cases but it requires both parties to co-operate and agree to work to the deadlines it imposes. Frequently Defendants do not and fail to give early admissions of liability in cases which they later settle.
The Government is looking to address high costs in claims but it is only going to work if built into any system there are clear disincentives for delay in defending cases.
Since April 2013, a revised concept of proportionality was introduced into assessing costs. It was aimed at identifying those lower value claims. Not enough cases have been processed through this new system to see whether it will address concerns of the Defendants and it remains too early to introduce further changes.
In addition the NHSLA are no longer responsible for paying a success fee in all cases funded by Conditional Fee Agreements and pay reduced premiums for After the Event Insurance. Currently those cases have not been fully processed through the system to see what the costs savings has been.
Why are claims pursued and why should this continue?
Medical practice does not self-regulate sufficiently as the tragedies in Morecambe Bay relating to maternity deaths and Mid-Staffordshire both demonstrated. Pursuing claims helps to highlight areas of poor patient care and to enable standards to be raised. Many claims are pursued because families do not want other people to experience what they have gone through and pursuing a claim is the only way for many to achieve this result if a hospital will not proactively acknowledge what has gone wrong. Claims are not brought for trivial reasons as the process itself is very stressful for Claimants.
If the NHS as a whole invested in improving patient safety then this would of itself reduce the number of claims and patients would not have both the stress of treatment which has gone wrong followed by a legal claim. The present proposals simply serve to reduce Access to Justice to vulnerable individuals.
In 2006 the NHS Redress Act was introduced with a view to there being a voluntary scheme to deal with lower value claims. There was insufficient interest or take up of this. In 2011 a Parliamentary Health Committee looked into introducing a no- fault scheme through which claims could be brought. The obvious result would have been to take away the costs element. However, their research showed that there was evidence that these could increase the costs of settling claims against the NHS by between 20% – 80%. It was therefore not taken forward.
In submissions to the Health Committee the Medical Protection Society said at the time:
It is important to note that a low value clinical negligence claim can be as complex as a high value claim. We appreciate that a claimant can only establish that he or she has a claim with the assistance of a lawyer and that there must be costs associated with this.
The Committee themselves said:
The Committee welcomes the development of a rapid resolution process for lower value clinical negligence claims against the NHS, as this will speed up admissions of liability and access to redress for patients, and reduce costs for the NHS. The Committee would like to see evidence of how the complexity of low monetary value claims will be managed whilst costs are reduced.
Sadly, reform and cost cutting will only work if there is clear co-operation between all parties involved which is not the current position.
Read here for more information www.bbc.co.uk/news/health-33287879